Limits to Bad Faith Allegations Against Regulatory Staff

Generally, regulators cannot be sued successfully for damages unless they acted in bad faith. Bad faith must be pleaded with particulars; a bald allegation is insufficient. In Savic v. College of Physicians and Surgeons of Ontario, 2022 ONSC 3403 (CanLII), https://canlii.ca/t/jpp3g the issue was whether an allegation of a statement by a staff person was sufficient to impute bad faith in the regulator as a whole. The registrant alleged that a senior staff person threatened the registrant at a meeting a decade earlier as follows: “From now on, we are going to put you under microscopic scrutiny for the rest of your career …We are going to go after you, and eventually, we will get you”. The threat was allegedly made to assist a friend of the senior staff person whose practice competed with that of the registrant.

Subsequently the registrant was the subject of a number of complaints and proceedings and their registration was eventually revoked. The registrant could not sue for malicious prosecution because the proceedings were not resolved in the registrant’s favour (which is a requirement for suing for malicious prosecution). The registrant sued under the lesser-known grounds of abuse of process and intentional infliction of mental distress.

The Court held that the registrant had no real chance of success. Even if the threat was accurate (which the Court did not have to determine) it “strains credulity to the breaking point” to conclude that the subsequent proceedings were caused by the staff person because:

  • many of the proceedings were externally generated by complaints,
  • the proceedings involved decisions by independent committees beyond the control of the senior staff person
  • the registrant consented to many of the dispositions,
  • the revocation occurred after the senior staff person retired, and
  • appeals by the registrant had been dismissed.

The Court also noted that it would be very difficult for the registrant to prove the allegations as the documents and findings of the proceedings of the committees of the regulator were inadmissible under the regulator’s enabling legislation.

The Court concluded:

There have been unimpeachable processes since then that have been concluded without any participation of those two doctors. To allow this claim to proceed would be to authorize a collateral attack on those completed proceedings.

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